Yesterday, the US Supreme issued its first decision in Zitofsky v. Clinton, No. 10-699, involving a power struggle between Congress and the President over recognition of Jerusalem as part of Israel. It has long been executive branch policy not to take an official position regarding the disputed territory of Jerusalem. Accordingly, when a child is born to a US parent in Jerusalem, US State Department policy forbids recording Israel as the place of birth. However, in 2002, Congress passed the Foreign Relations Authorization Act allowing US parents to request that Israel be listed on the record of birth for a child born in Israel. When a parent exercised this option, the State Department refused to comply on the basis that recognition of foreign states and governments is the prerogative of the executive branch, not the legislative branch. Therefore, the executive is not bound by the statute.

When the case reached the courts, a threshold issue was whether the courts could even reach the merits of the case or whether they were barred from consideration by the political question doctrine. That doctrine holds that certain issues are committed to the political branches and are inappropriate for judicial resolution.

In Zivotofsky, the Supreme Court held the political question doctrine to be inapplicable because there is no textual commitment of the issue to the political branches. The Court reached this conclusion despite the executive branch argument that the president is given the express authority to appoint and receive ambassadors. This express authority has long been viewed as the including the authority to establish or break off diplomatic relations and to recognize foreign sovereigns. See, e.g., US v. Pink and Belmont. The Supreme Court rejected the lower court's characterization of the issue as one requiring the courts to substitute their judgment for that of the political branches in determining whether Jerusalem is part of Israel. Instead, the Supreme Court characterized the issue as whether the legislation is constitutional and controls the issue or whether it improperly infringes on the executive power. It stated that determining the constitutionality of a statute is familiar territory for the Court. This, it held the case to be justiciable and remanded to the lower court to develop a full factual record on the merits. Stay tuned for the next round . . .